OPERATIVE SOCIETY MALAYADI VANNIYUR P O KANYAKUMARI DIST Vs. SECRETARY MULTI PURPOSE CO PRESIDING OFFICER LABOUR COURT MADURAI

JUDGEMENT

(1.) IN this writ petition an important question relating to the scope and applicability of S.33C (2) of the INdustrial Disputes Act, 1947 (hereinafter called the Act) is involved. The second respondent was impleaded as a clerk under the petitioner-co-operative society on a monthly pay of Rs. 95. The Executive Officer of the District Co-operative Society who is an inspecting authority, during inspection in May, 1972 noticed a collection of a sum of Rs. 4, 485 by the Society from various members without actually issuing receipts. IN certain cases, the moneys realised were not also brought into accounts maintained by the Society. The Executive Officer considered that the second respondent was responsible for these irregularities and there was a temporary misappropriations. The Executive Officer appears to have written a letter to the President of the registered Society asking him to take appropriate disciplinary action against him. On 13-7-1972, the President of the Society suspended the second respondent from service pending further investigation and enquiry. But no further action was taken either to frame charges against the second respondent or to conduct an enquiry into the alleged irregularities and temporary misappropriation. The second respondent waited for more than a year and ultimately finding that the petitioner has indefinitely suspended him from service and is not taking any action on the proposed investigation and enquiry, filed an application before the Labour Court, Madurai under S.33C (2) of the INdustrial Disputes Act claiming that he be paid wages for the period of his suspension between 13-7-1972 to 13-6-1973 when he filed the petition amounting to Rs. 1, 045. He also claimed in that petition that he is entitled to bonus for 1969-70 in the sum of Rs. 140 as per the decision of the Board and General Body of the petitioner-Society. The Society filed a counter to this claim petition raising certain legal objections in addition to challenging the claim on merits. It was contended by the Society that it had a right to keep the second respondent under suspension and that the second respondent has no right to claim wages for the period of suspension. The Labour Court held that though two years had lapsed, no domestic enquiry was held in respect of the alleged misappropriation and that, therefore, the suspension was illegal and not bona fide. The Labour Court also held that the workman is entitled to be paid salary at the rates claimed by him for the period for which he was kept under suspension. Since there was no dispute that in the General Body, the Board's recommendation relating to payment of bonus was accepted, the second respondent was also held to be entitled to bonus. Accordingly the Labour Court computed the value of the benefits due to the second respondent at Rs. 1, 185 as claimed. It is against this order the Society has filed this writ petition.

(2.) MR. Somayaji, the learned counsel for the petitioner, contended that the Labour Court had no jurisdiction to hold the suspension as illegal and the question whether the suspension is legal or not would only be a basis of an industrial dispute and could not be decided in an application under S.33C (2) of the Act. In this connection he cited a number of decisions.

(3.) IN the two decisions of this Court in The Management, Udipi Hindu Restaurant, Madurai v. The Presiding Officer, Labour Court, Madurai, and The Management of New Cinema, Main Guard Square, Madurai v. The Presiding Officer, Labour Court, Madurai, there are certain observations which are susceptible to a wider interpretation. But having regard to the facts in those two cases, we are of the view that they will have to be treated as cases where the suspension is followed by an order of dismissal and the decision that S. 33C (2) is not applicable is only in consonance with the principle that if there is an order of dismissal, the period of suspension cannot be treated separately. To the extent the decision in Madurai District Co-operative Supply and Marketing Society Limited, Madurai v. Veerannan and another, held that in spite of the order of dismissal taking effect from the date of suspension the right of the employee to claim salary for the period of suspension is not affected and that period could be treated separately and a claim petition under S. 33C (2) could be entertained, we are of the view is contrary to the decision in V. Raju v. President, M. D. C. Co-op. Bank, We are of the view that this view in Madurai District Co-operative Supply and Marketing Society Ltd., Madurai v. Veerannan and another (supra), is not acceptable and we are in respectful agreement with Ismail, J., in V. Raju v. The President M. D. C. Co-op. Bank, (supra).